‘BART can count on legal hurdles,’ ACLU attorney warns

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Antonio Oliver, also known by his artist’s name Tone Oliver, from Oakland, raps at a performance to show solidarity with all buskers against a proposed ban on panhandling on BART on August 30, 2019 at the Fruitvale BART station in Oakland, California. The show, organized by Oliver, was a demonstration against the proposed ban on panhandling on BART, which impacts artists as well as people who are just asking for money. (File photo by Haley Nelson)

BART and the American Civil Liberties Union are at odds over whether the transit agency can prohibit musicians, dancers and the homeless from asking passengers for money.

According to BART’s attorneys, panhandling and busking bans on trains and station platforms are constitutional, with plenty of precedent from public transportation systems around the country that have similar restrictions.

But the ACLU of Northern California countered Tuesday that asking for money is protected under the First Amendment, and that a ban like the one BART officials have spent more than a year debating would be unconstitutional.

ACLU staff attorney Abre’ Conner stopped short of threatening to sue BART if the panhandling ban becomes a reality. But Conner said Tuesday that the ACLU, which last year took Sacramento to court over an anti-panhandling ordinance, has “made clear to BART that we are watching their actions.”

“BART can definitely count on facing legal hurdles if they are to try to move forward with passing an ordinance that is going to be unconstitutional,” Conner said.

BART’s board of directors will discuss the panhandling ban proposal on Thursday, but will not take any votes on the hot-button issue this week.

Director Debora Allen, who has led the charge for the ban, said she opted not to present an ordinance for the board to vote on this month, and instead wanted to learn more from the agency’s staff. Allen said actual legislation won’t come before the board until early next year at the soonest.

Still, Allen said she isn’t backing away from the issue, which has sparked passionate responses from some BART passengers, who say being routinely asked for money makes them feel unsafe.

“The riding public overwhelmingly is with me on this issue,” Allen said, citing emails and other feedback she heard when her proposal came up over the summer. “Riders consistently told me there were things they wanted changed on the trains, and this was one of many.”

BART officials last year included a ban on panhandling as part of their 12-point plan to make the system safer following a violent summer that included the killing of 18-year-old Nia Wilson at MacArthur Station in Oakland. But as BART’s governing board considers the idea, General Manager Robert Powers said earlier this month that the agency’s administration is not taking a position on the legislation. Instead, BART staff put together background information for the board on what legal issues the agency would have to navigate to implement such a ban.

According to BART’s lawyers, the agency does have the legal authority to ban solicitation in the “paid areas” of the system, meaning parts that are beyond the fare gates, like platforms and trains. That’s because the paid areas are not a “public forum,” BART attorneys wrote — unlike the “free areas” of the BART system, like plazas and station entrances, or city streets, the space at issue in the ACLU’s Sacramento case.

A ban on solicitation would not violate the First Amendment as long as the restrictions are “reasonable and viewpoint neutral,” BART staff wrote, meaning they don’t discriminate based on the content of someone’s message.

The presentation also noted that the subway systems in six major cities — New York City, Los Angeles, Chicago, Atlanta, Seattle and Washington, D.C. — all have ordinances that ban panhandling.

In a video posted to Twitter, BART Director Janice Li said California’s criminal law already prohibits aggressive panhandling, which includes physically blocking people’s path or persistently asking for money after being denied.

Li, who opposes the ban, also questioned whether it would be effective if it did pass, pointing to the many people who still perform for tips and ask for money on the subway in New York City despite the restrictions there.

“It doesn’t solve the problem,” Li said. “If we pass a policy, that behavior will still continue on our trains.”

Nico Savidge is a reporter covering transportation for The Mercury News and East Bay Times. A graduate of the University of Wisconsin, he previously wrote for EdSource, the Wisconsin State Journal and The Janesville Gazette. He commutes by foot, car, BART, bus and ride-hailing app -- sometimes all in one day.